"The Death of Chatterton." Athenaeum 1652 (25 Jun. 1859), 841-842.
An important and interesting trial of Copyright in the Rolls Court, Dublin, came to a second hearing on Wednesday, last week, in which Mr. Walliss picture of The Death of Chatterton played the principal part. The facts, as stated in the petition and by the counsel, were these:
The original painting was first exhibited at the Royal Exhibition of Arts, in London, in the year 1856. It was purchased by Mr. Augustus Leopold Egg from the artist. There was an agreement whereby Mr. Egg sold to Mr. Turner the right to engrave the picture, with liberty to exhibit it for the purpose of obtaining subscribers. The only permitted publication of the engraving of the picture was in the National Magazine. In the month of April the picture was carried over to Dublin to be exhibited. The picture was known as The Death of Chatterton, and so entitled by Mr. Turner. Now, this title was assumed by Mr. Robinson, a dealer in photographs, and an advertisement published by him stated that he would have "the beautiful stereoscopic figure of the last moments of Chatterton" ready for sale on the following Monday. Mr. Turner, believing that such an advertisement would injure his property, applied to Mr. Robinson to discontinue the sale. Mr. Robinson refused to stop his publication, on the ground that his stereograph was not copied from Mr. Walliss picture, but was an independent study from the biography of Chatterton. Hence the application to the Rolls Court for an injunction to restrain. At the first hearing, which took place in May, the injunction was granted, Mr. Robinson submitting until an affidavit could be framed. He came before the Court with an affidavit, stating that it is impossible to take pictures for stereoscopic slides from a plain surface such as a picture. Last week he also affirmed that in March of the present year he made arrangements for a series of stereoscopic pictures, illustrating the life of Chatterton, such as his Meditations in the Muniment-room of St. Marys, Redcliffe, writing his last letter to Walpole, &c. The series was completed, with the exception of Chatterton in the Muniment-room. Having seen the painting, and studied the works which gave an account of the poet, he made arrangements to produce these illustrations. He constructed in his establishment in Grafton-street a background scene of London from a painting upon canvas, by a clever artist, and so disposed a figure as to represent the dead poet. His advertisement intimated that the stereograph of the death of Chatterton was from the "living model." An affidavit was put in by Mr. Wallis, in which he stated that his picture was original, and that he had not copied from any one. An engraving was produced, and handed up to the Court, from which it was alleged the artist had derived his idea of the death of Chatterton. It purported to have been engraved by Edward Orme, of No. 14, Old Bond Street, painted by H. Singleton, and dedicated to the Marquess of Lansdowne. The date of publication is given as 1st of May, 1794. Beneath the engraving are the words from Cowley
Behold him, Muses, see your favourite son
The prey to want ere manhood has begun,
The bosom ye have Wed with anguish torn,
The mind ye cherished drooping and forlorn.
The engraving represents a garret and miserable bedChatterton reclines upon the pallet in a dying state; his head lies at the right side of the picture, the shoe is on the right foot, the other shoe is off, a phial lies on the ground, manuscripts are scattered about,a chest containing papers lies open; on a small table books are seen, and also a candlestick, the extinguisher being on the candlethree pens have been carelessly thrust into an old ink-bottleupon the wall a caricature or grotesque face has been drawn, with chalk or cork. At the door stand a woman and child, the former being the landlady of the house in which Chatterton died. Her face exhibits surprise and terror. It was not contended that Mr. Wallis had copied Singletons picture, but that Mr. Robinson had. Counsel contended that Mr. Turners title in the work was incomplete; Mr. Wallis not being at present a party to the suit. After a long argument on each side, the Master of the Rolls said, that whatever the ultimate difficulties of the case might be, there was no question as to what he was bound to do at present. With respect to the alleged failure of Mr. Turner to prove his title, the documents which had been laid before the Court showed that he had a title; that was, if he stated it correctly, and the objection at present was that the petition most certainly did not state it correctly. It was clear to him that there ought to be an amendment in the petitionthat the facts should be accurately stated, and that Mr. Wallis should be made a party to the suit. It was quite plain from the importance of the question at issue that the injunction should be continued until the hearing of the cause. Suppose that Mr. Wallis had never sold this picture, but exhibited it at Mr. Cranfields for the purposes of engraving, would he in that state of facts have a right to sue? He had a very strong opinion (though he admitted the question had never been the subject of decision) that the painter had, by common law, the very same protection which the author of any work enjoyed previous to publication. Surely nothing could be more unjust than to say that if a painter gave the public the privilegeand a very great privilege it was in some casesof allowing them to see a work of Art in his studio, a person who had thus inspected the picture, having a good memory, and being an artist himself, would have a right to endeavour by some contrivance to make a copy of that workfor instance, by getting his apprentice, as was done in the present case, to dress himself up in a peculiar manner, so as to represent the principal figure in the painting, and then taking a photographic representation of the subject composed in imitation of the picture, and representing it in terms by advertisement as a copy of the picture. This had been done in the present instancethe photographic pictures sold by the respondent having been advertised in the newspapers as "The Death of Chatterton." He looked upon this as nothing short of a fraud, a deliberate fraud; and he had not the slightest difficulty in holdingon the principle laid down in the case of Prince Albert v. Strange, which was the principle of common sense, and in the admirable judgment of Mr. Justice Erle in the case of Jeffrey v. Booseyone of the ablest judgments that had ever been deliveredthat it would be the bounden duty of a court of equity to interfere in such a case, quite irrespective of the common-law right of the painter to sue for damages, which right he would have as long as he had not published the picture. The question then arose whether there had been a publication of the picture; because, if there had, then considering the principle laid down in the case of Jeffrey v. Boosey, it would be very questionable what the law might be. He had no hesitation in saying that the exhibition of the painting at the Royal Academy was not such a publication as would deprive the artist of his right. It was a qualified publicationit was a privilege allowed to the public to see works of art. Did any one suppose that if Sir Walter Scott read out one of his productions to a number of his friends, and that one of them had such an accurate memory that he could reproduce every word of it, or that some person was in a corner taking notes in shorthanddid any one suppose that in such a case the reading of the work would amount to a publication so as to give the person who had taken notes a right at common law to bring out an edition of the work? In analogy to that case the exhibition of a picture at the Royal Academy, or at Mr. Cranfields, or elsewhere, for the like purpose, would be nothing more than a qualified publication, which would not deprive the painter of his remedy at common law or in equity prevent a party from the commission of a fraud in attempting to copy the picture. A difficulty, however, existed as to the third pointnamely, that there had been a publication in the National Magazine. But for that publication, there would not be any serious doubt in this case. He was not prepared to say, nor did he wish at present to offer an opinion on the matter, what was the effect of that publication in the National Magazine. If the respondent had simply confined himself to copying that engraving, it was questionable whether the petitioner would have any cause of action against him. But he had not confined himself to merely copying the engraving; he had undoubtedly used it in the preparation of the photograph, but he had also adopted the colouring of the picture for the purpose of inducing the public to believe that the photograph was taken from the picture itself. He thought this was a fraud; he did not use the word in an offensive sense, but a fraud in contemplation of a court of equity. He might entertain some doubt as to whether the photographic pictures produced by the respondent would be a serious injury to the owner of this valuable painting; but if this were overlooked the photograph might by a very easy process be enlarged to the size of the original, and thus an unimportant piracy might be followed up by the adoption of another mode of piracy which would be most injurious to the owner of the painting. His Honour concluded by saying that he would continue the injunction.
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